The Italian Style III: Interpretation

Abstract

There are certain similarities between the judicial functions in Italy and in common-law jurisdictions. In each the court is required to decide a concrete case according to authoritative rules, and in each the process of identification, interpretation, and application of the rules in the context of the case is for the judge. Interpretation is necessary whether the authority to be applied be judicial or legislative in origin, and in a sense the same problems are faced by the judge regardless of the source of the norms he must seek to bring to bear on the problem before him. In both systems a simplistic view of the judicial process as mere mechanical application, in the one principally of precedents and in the other principally of statutes, continues to influence the thinking not only of laymen but of a large segment of the profession. And in both systems the literature on the nature of the judicial process is extensive. In the United States one talks about the judicial process; in Italy the discussion is of the and application of statutes (interpretazione ed applicazione della legge). But the apparent similarities in the judicial processes themselves mask differences in emphasis and outlook. Like and unlike multiply at various levels of comparative analysis and from different perspectives. In fact the act of is the point at which doctrine and law intersect. It is the focus, the culmination, of the forces represented by the formally recognized sources and institutions of law and the prevailing attitudes toward them that have so much to do with their actual force and effect. Hence all that has previously been said about doctrine' and law2 takes on new meaning when considered in relation to interpretation. Judicial is only one of three kinds of traditionally discussed in continental works on the subject, the others being interpretation and interpretation.3 Doctrinal is the work of scholars. Authentic is performed by the formal source of the statute itself, the legislature. The special significance of doctrinal and of authentic at specific periods in the history of the civil law system is generally unfamiliar to common lawyers, and a brief discussion provides useful background for an explanation of current theories of judicial in Italy. There was a lengthy and highly creative period in the history of Roman law in which the opinions of legal scholars were authoritative. These scholars, wlho

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